A
Shelby County Criminal Court Jury convicted the Appellant,
Justus Onyiego, of two counts of aggravated rape, a Class A
felony. After a sentencing hearing, the trial court merged
the convictions and sentenced him to seventeen years in
confinement. On appeal, the Appellant contends that the trial
court denied his right to due process by failing to dismiss
the indictment due to the State's ten-year preindictment
delay, that the trial court erred by failing to strike the
testimony of two police officers, that the trial court erred
by refusing to admit evidence of the victim's prior
sexual behavior under Tennessee Rule of Evidence 412, and
that a prosecutor's failure to correct false statements
during closing arguments violated Napue v. Illinois,
360 U.S. 264 (1959), and constituted prosecutorial
misconduct. Based upon the record and the parties'
briefs, we find no reversible error and affirm the judgments
of the trial court.

Norma
McGee Ogle, J., delivered the opinion of the court, in which
John Everett Williams and Alan E. Glenn, JJ., joined.

OPINION

NORMA
MCGEE OGLE, JUDGE

I.
Factual Background

In
January 2015, the Shelby County Grand Jury indicted the
Appellant for two counts of aggravated rape based upon
alternative theories. The indictment alleged the rapes
occurred in September 2004, and the Appellant's jury
trial began on June 1, 2016. Although the Appellant does not
contest the sufficiency of the evidence, we will summarize
the evidence presented at trial.

The
thirty-seven-year-old victim testified that in September
2004, she lived in an apartment in Memphis with her mother,
sister, and children. On the morning of Sunday, September 5,
the victim was sitting on the steps outside her apartment and
noticed that a four-door, green car kept driving by the
apartment. At some point, the car stopped, and the driver,
whom the victim identified at trial as the Appellant, asked
if she knew where he could buy some powder cocaine. The
victim had seen the Appellant in the neighborhood previously
and "kind of recognized who he was" but did not
know his name. The victim told the Appellant that she did not
know where he could buy cocaine, and he told her that "I
was really trying to see could I date you, get with
you." The victim knew he was talking about prostitution.
The victim asked how much money he had, and he asked what he
could get for forty dollars. The victim told him
"[m]aybe both, " meaning oral and vaginal sex. The
victim wanted money to buy drugs, so she got into the
Appellant's car.

The
victim testified that the Appellant claimed he knew "a
good spot" and that he pulled onto a ramp at a warehouse
where trucks loaded and unloaded. The victim was scared
someone would see them and told him she did not like that
location. She also told him she wanted the money first. The
Appellant told the victim, "I ain't got no change. I
give it to you afterwards." The victim said she
responded, "You ain't got no change? But we just
passed by the store." The Appellant then told the
victim, "I'm going to give it to you, I'm going
to give it to you." The victim told the Appellant,
"Man, no, that's okay. I want to go home." The
Appellant acted as if he did not want to take to the victim
home, so the victim opened the door to get out of the car.
The Appellant grabbed her hair and pulled her back inside the
car. The victim turned around and started hitting the
Appellant, and they began "fighting and tussling."
The victim said that the car was constantly moving on the
ramp while they were fighting and that "the front two
wheels went over the ramp and [the car] got stuck." The
Appellant began choking the victim and put a knife to her
throat, and the victim passed out. She said that when she
awoke, the Appellant's penis was inside her vagina, and
he was having sex with her. She saw a screwdriver in the car,
grabbed it, and started "sticking him with it." She
got out of the car and ran to a gas station.

The
victim testified that when the police came to the gas
station, she told them that a man had raped her and that his
car was stuck on a ramp at a warehouse. The police went to
the warehouse and brought the Appellant to the gas station,
where the victim identified him as her attacker. The victim
went to the Rape Crisis Center and spoke with a nurse. She
told the police and the nurse that the Appellant used a knife
during the attack but did not tell them that she was working
as a prostitute that day. The victim identified photographs
of scratches and cuts on her neck and the Appellant's car
stuck on the ramp for the jury.

The
victim testified that she was scared to cooperate with the
police because the Appellant knew where she lived and that
she did not have any further contact with law enforcement
after September 5, 2004. Years later, though, a police
officer contacted her, and she told him about what happened
in September 2004. The officer showed the victim a
six-photograph array, and she selected the Appellant's
photograph. The victim acknowledged that she originally
agreed to have sex with the Appellant but that she changed
her mind because she did not like the location he chose and
because he did not have any money.

On
cross-examination, the victim denied telling the police that
she was walking home after a night of partying and smoking
crack cocaine when the Appellant stopped his car to talk with
her. She acknowledged that she did not tell the police she
was prostituting herself on September 5 and that she may have
told them she was raped at gunpoint. She also acknowledged
that she was addicted to crack cocaine at the time of the
incident, that she agreed to get into the Appellant's
car, and that she agreed to have sex with him for money.
However, he would not give her the money prior to the sex, so
she changed her mind and told him no. She testified that they
started "fight and tussling" and that she began
"sticking" him with the screwdriver. She
acknowledged that she broke his glasses and that she may have
"bust[ed]" his lip.

Lieutenant
Mark Wojcicki of the Memphis Police Department (MPD)
testified that about 7:30 a.m. on September 5, 2004, he was
dispatched to the Tiger Mart Exxon on the corner of Third and
Crump and was the first officer on the scene. The victim was
"very frantic, " had been "beat up really bad,
" and told Lieutenant Wojcicki that "she asked a
dude for a ride and he pulled around some building, and then
hit her with something and tried to force her to have sex
with him." The officer said that the victim's
clothes were torn and that "[y]ou could see all of her
bra." He identified photographs of the victim taken at
the gas station and said the photographs showed
"ligature marks around her neck and just redness and
bruising." Lieutenant Wojcicki left the gas station,
went "down the street, " and saw a car
"halfway off" a loading dock. He saw the Appellant
walking toward the Tiger Mart Exxon, and the Appellant
matched the description given by the victim. Lieutenant
Wojcicki transported the Appellant to the gas station, and
the victim shouted, "That's him, that's
him."

On
cross-examination, Lieutenant Wojcicki acknowledged that the
victim claimed that she had been walking home "after a
night of partying, smoking crack"; that the Appellant
stopped his car and asked if she wanted a ride home; and that
he raped her at gunpoint. Lieutenant Wojcicki said he did not
find any weapons on the Appellant.

Officer
William Goetsch of the MPD testified that he responded to the
Tiger Mart Exxon on September 5, 2004. The Appellant was in
custody when he arrived, and the victim said the Appellant
raped her. The victim claimed the Appellant used a gun
"to traumatize or to hold her at bay while [the] rape
had occurred." Officer Goetsch said the victim was
"battered, " had injuries to her neck, and
"was very sincere and genuine in how she spoke about
that she had just been raped." Defense counsel asked if
the victim admitted to Officer Goetsch that she had been
working as a prostitute that day, and he answered, "I
believe so." On cross-examination, though, Officer
Goetsch acknowledged that he wrote the police report for this
case and that he did not mention the victim's working as
a prostitute in the report. He explained that he would not
have included information in the report that was not relevant
to the case.

Sergeant
Lavern Jones of the MPD testified that he went to the Tiger
Mart Exxon and photographed the victim. He then went to the
warehouse on Crump and photographed a car "hanging off
the dock." A cellular telephone and a condom were on the
driver's side floorboard inside the car, and clothing,
including a pair of men's boxer shorts, was on the
backseat. Sergeant Jones said that the police found some of
the Appellant's personal property, including his wallet,
inside the car and that a condom wrapper was on the ground
outside the car.

Kristine
Gable, the Nursing Coordinator for the Rape Crisis Center,
testified as an expert in forensic sexual assault examination
that a nurse examined the victim at 9:30 a.m. on September 5,
2004, and that she had reviewed the nurse's report. The
victim was twenty-five years old and reported that she had
been raped at 6:30 a.m. The nurse described the victim as
"agitated, cooperative, sobbing, and tearful, " and
the victim told the nurse the following: The victim had been
walking home when the Appellant pulled up beside her and
asked if she needed a ride. The victim got into the car, the
Appellant parked between two trailer trucks, and the victim
tried to get out of the car. The Appellant hit the victim on
the head with a gun, choked her, tore off her panties, and
raped her. According to the nurse's report, the Appellant
vaginally penetrated the victim one time, ejaculated, and did
not use a condom.

Ms.
Gable testified that the nurse collected vaginal swabs and
slides for a rape kit and that the nurse did not see any
vaginal or anal injuries. However, the nurse reported redness
and three lacerations to the victim's neck and swelling
and redness to the victim's left eye. The victim
complained of a headache and abdominal pain.

Sergeant
Israel Taylor of the MPD testified that he used to work as an
investigator for the MPD's DNA Unit and was responsible
for investigating "old" rape and sexual assault
cases. In October 2014, Sergeant Taylor received and began
investigating the victim's case, which had been closed by
the original investigator because the investigator could not
locate the victim. Sergeant Taylor stated, "The original
investigators made several attempts to try and locate her,
relative's houses, phone numbers, and it was just
everything was a dead end, basically, for lack of a better
term." As a result, the police released the Appellant
from custody.

Sergeant
Taylor testified that he contacted the victim, that she
agreed to cooperate, and that he took a formal statement from
her in December 2014. He said the victim "was just a
range of emotions when we met with her: part relief, part
anger, part sadness." He showed her a six-photograph
array, and she "eventually" selected the
Appellant's photograph. The victim told Sergeant Taylor
that she was "positive" the Appellant was the
perpetrator. The grand jury indicted the Appellant, and the
police arrested him and collected a buccal swab from him.

Jennifer
Millsaps of the Tennessee Bureau of Investigation's
Serology and DNA Unit testified as an expert in forensic DNA
analysis that in June 2011, she analyzed the swabs and slides
in the victim's rape kit and found sperm. In January
2015, she received a "standard" from the Appellant
and compared the DNA from the Appellant's sample to the
sperm DNA. The DNA profiles ...

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